Phillippe Sands Debates John Bellinger on Waterboarding

by Julian Ku

But there are few fireworks in this Guardian-sponsored exchange. Bellinger comes off as a bit defensive and is trying to introduce a new argument: Let’s move on. Here is the main thrust of the exchange:

Philippe Sands: Are there any circumstances in which you could imagine the use of water boarding to be consistent with international law?

John Bellinger: Again, we’ve decided that we just don’t want to get engaged in hypotheticals and applying the law to the facts of these particular cases.

Philippe Sands: Let me put it in yet another way. Could you imagine any circumstances in which the use of water boarding on an American national by a foreign intelligence service could be justified?

John Bellinger: One would have to apply the facts to the law, the law to the facts, to determine whether any technique, whatever it happened to be, would cause severe physical pain or suffering.

Philippe Sands: So you’re willing to exclude any American going to the international criminal court under any circumstances, but you’re not able to exclude the possibility of water boarding being used on a United States national by foreign intelligence service? I mean, that just strikes me as very curious.

John Bellinger: Well, I’m not willing to include it or exclude it, I mean, these are issues that our justice department as a matter of interpreting both the domestic law on torture and international law, has concluded that just don’t want to get involved in abstract discussions of applying the law to any set of facts.

I can certainly tell you as a State Department official that it makes it very difficult to explain to the world and to provide the important assurance of what we’re doing or not doing if we can’t talk about intelligence activities or we can’t even talk about hypotheticals.

But the decision has been made at least so far and maybe Judge Mukasey, if he’s confirmed as attorney general, will make a different decision, that he would talk more about techniques. But at least, so far, the conclusion that we should not talk about specific techniques even in terms of hypotheticals.

There is nothing abstract or unclear going on here. Assualt and kidnapping are llegal even if we accept the administration’s fraudulent claims concerning the Geneva Conventions and torture statute. These people are criminals, especially the lawyers among them.

Yeah, looks like Bellinger, much like Mukasey, isn’t terribly interested in answering the question.

11.05.2007
at 3:32 pm EST Matthew Gross

Gittings, that you have to resort to epithets tells me that you haven’t a leg to stand on.

At the end of the day, you know nothing about the way interrogation techniques were applied. Depending on the fact matrix, a technique as-applied may be torture, or it may not be. A slap presumably isn’t torture – whereas 1000 slaps may be. You simply don’t know enough to make a judgement call when the technique in question happens to be borderline (as waterboarding may be).

Self-righteous indignation is not a substitute for facts and persuasive legal analysis. And yours, unfortunately, is profoundly unimpressive.

11.10.2007
at 12:13 am EST 18 USC 2340

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